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1-6 Export

August 2010

It is the policy of UCAR to comply with all export laws and regulations of the United States. Export controls govern the transfer, distribution, disclosure and shipment of certain controlled information, software code and tangible items as well as the provision of certain services to Foreign Persons and countries. Although most of the work that UCAR undertakes involves fundamental research that may be shared freely with Foreign Persons, UCAR is occasionally involved in the export of controlled services, items and/or technology. UCAR takes its export control responsibilities seriously, and expects its employees to do so as well.

Each employee is responsible for: (a) recognizing when the transfer, distribution, disclosure or shipment of an item or of information or software may qualify as a regulated export; (b) seeking assistance from the UCAR Office of General Counsel prior to proceeding with, or agreeing to engage in, a regulated export; and (c) complying with all export control laws and regulations as well as this Policy and related export control procedures. Further, each employee is responsible for complying with restrictions related to travel to and business with countries, entities, and individuals sanctioned by the United States in regulations, laws, and executive orders enforced by the U.S. Department of Treasury's Office of Foreign Assets Control.

Engaging in an export without complying with applicable export laws and regulations, this Export Policy, and the related export control procedures may subject both UCAR, as well as the individual exporting employee, to substantial civil and criminal penalties. Any employee who exports in violation of law or this Policy may be subject to disciplinary action by UCAR, up to and including termination.

Please see UCAR's Export Control procedures for a full description of export control procedures and information subject to export controls.

Contact UCAR's Senior Export Control Officer for interpretation of this Policy.

Affiliated Procedure(s) or Guideline(s):

July 2013

I. Purpose:

It is the policy (https://www2.fin.ucar.edu/policies/1-6-export) of UCAR to comply with all export laws and regulations of the United States. Export controls govern the transfer, distribution, disclosure and shipment of certain controlled information, software code and tangible items as well as the provision of certain services to Foreign Persons and countries. Although most of the work that UCAR undertakes involves fundamental research that may be shared freely with Foreign Persons, UCAR is occasionally involved in the export of controlled services, items and/or technology. UCAR does not accept work involving classified information.

Special attention must be given to proposed and active direct and indirect projects involving the Department of Defense, as these projects are much more likely to involve export controlled items and technical data than UCAR’s other sources of research funding.

These guidelines will help to differentiate between fundamental research and restricted projects that may contain export controls.

II.   Definitions

DEEMED EXPORT: "Deemed Export" is where a foreign national on United States (U.S.) soil may be exposed to, or have access in any manner to, an export-controlled item or export-controlled software or information.
     
EXPORT: "Export" means to send or take controlled tangible items, software or information out of the United States in any manner, to transfer ownership or control of controlled tangible items, software or information to a foreign person, or to disclose information about controlled items, software or information to a Foreign Person.
FOREIGN PERSON: A "Foreign Person" is anyone who is not a US person. A Foreign Person also means any foreign corporation, business association, partnership or any other entity or group that is not incorporated to do business in the U.S. Foreign Persons may include international organizations, foreign governments and any agency or subdivision of foreign governments such as consulates.

FUNDAMENTAL RESEARCH: "Fundamental Research" is basic and applied research in science and engineering where the resulting information is to be shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons. The conduct, products, and results of Fundamental Research are to proceed largely unfettered by deemed export restrictions, meaning the results will be published and made freely available to the scientific community. Research whose results carry dissemination or Foreign Person access restrictions will not qualify as Fundamental Research for purposes of the export control regulations.

Because export regulations expressly recognize that Fundamental Research is excluded from deemed export controls or export licenses, other government approval is generally not needed before involving foreign nationals in Fundamental Research activity at UCAR. However, such research may give rise to export issues if the primary research is to be conducted outside of the U.S. or if it requires Foreign Person access to ITAR (International Traffic in Arms Regulations) export control-listed technical information or software code provided by third parties such as corporations, commercial vendors, or government collaborators.

U.S. PERSON: A "U.S. Person" is a citizen of the United States, a lawful permanent resident alien of the U.S. (a "Green Card" holder), a refugee or someone in the U.S. under political asylum protection or amnesty. U.S. Persons also include organizations and entities, such as universities, incorporated in the U.S. The general rule is that only U.S. Persons are eligible to receive controlled items, software or information without first obtaining an export license from the appropriate agency unless a license exception or exclusion is available.

III. Guidelines for Projects associated with the Department of Defense

  1. All proposals that involve work associated with the Department of Defense must clearly identify the proposed work either as Fundamental Research-free of restrictions, or not Fundamental Research. All restrictions must be clearly identified.
  2. All awards of funds (through a direct agreement or via interagency transfer through a Cooperative Agreement or prime contract) associated with the Department of Defense must be mutually agreed upon between a DoD representative or the prime funder and UCAR to be either Fundamental Research or not Fundamental Research, with all restrictions clearly identified.  If a DoD representative or the prime funder verbally requests restrictions that are not otherwise embodied in any written agreement, UCAR personnel must report such restrictions to the UCAR Sponsored Agreements office, who will work with UCAR’s Export Compliance Program Manager to determine whether or not export licenses or a Technology Control Plan (TCP) are required to comply with such instructions.
  3. Prior to commencing work, export compliance training is mandatory for all UCAR staff, visitors, and contractors working at any UCAR/NCAR/UCP facility on a project that involves Department of Defense (DoD) funding, regardless of whether known export controlled items or technical data are involved.  It is the responsibility of the PI, in coordination with Administrators and Export Compliance Coordinators, to ensure that export compliance awareness training has taken place prior to commencing work. Training must be refreshed annually.
  4. A Technology Control Plan (TCP) will be implemented for all DoD related projects that have restrictions. A Technical Assistance Agreement (TAA) may be required for DoD funded projects that contain restrictions. TAA is an agreement for the performance of defense services or the disclosure of technical data.

 

For more information: http://www2.fin.ucar.edu/ogc/export-compliance


July 2013

I. Introduction. These procedures are designed to manage the treatment, shipment and transfer of export-controlled information and technologies so as to ensure compliance with export laws of the United States . 

II. Definitions.

A. Deemed Export . Deemed Export means the release or disclosure of technical information (including software) to a Foreign Person, whether within or outside the United States .

B. Export. An Export is the transfer, shipment or release of certain equipment, technology, software, services, knowledge and information directly or indirectly to a Foreign Person.

C. EAR. The Export Administration Regulations are promulgated and enforced by the Bureau of Industry and Security (BIS), which is part of the Department of Commerce.

D. Export Compliance Manual. UCAR's Export Compliance Manual is UCAR's institutional plan to meet its export obligations and provides best practices for export management.

E. Foreign Person . Foreign Person means any person who is not a permanent resident (permanent residents include U.S. citizens and green card holders). Foreign employees, students and visitors who are in the United States on non-permanent resident status are considered Foreign Persons. Foreign Person also means any business entity that is not organized to do business in the United States, as well as international organizations, foreign governments and any agency or subdivision of foreign governments.

F. Fundamental Research. Fundamental Research means basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls . Information generated during and resulting from Fundamental Research is not be subject to export restrictions to Foreign Persons.

G. ITAR. The International Traffic in Arms Regulations (ITAR) are promulgated and enforced by the Department of State (Directorate of Defense Trade Controls).

H. OFAC. Office of Foreign Assets Control.

I. OGC . UCAR Office of General Counsel. 

III. Procedures 

Each UCAR employee who exports is responsible for ensuring that his/her export complies with the law. This responsibility includes the following obligations:

A. Recognize when you are engaged in an export . Exports may take any one or more of three forms:

  1. Shipment or transport of, or arranging for the shipment or transport of, an item, technology or technical information (including software) outside the United States.
  2. The provision of defense services or technical assistance in the development, design, modification, maintenance, repair, testing, production or “use” of a military item.
  3. Release or disclosure of technical information (including software) to a Foreign Person, whether within or outside the United States.

B. Get help.

  1. Attend training and/or ask for training. Directors, Principal Investigators and Administrators having responsibility for projects involving export-controlled material and/or international collaborations must ensure that employees, and others within their respective areas of responsibility, are properly instructed in the handling of export-controlled items and information. Export-awareness and compliance training from the OGC is provided semi-annually to all interested personnel and is available to any individual or department, upon request.
  2. Prior to commencing work, export compliance training is mandatory for all UCAR staff, visitors, and contractors working at any UCAR/NCAR/UCP facility on a project that involves Department of Defense (DoD) funding, regardless of whether known export controlled items or technical data are involved.  It is the responsibility of the PI, in coordination with Administrators and Export Compliance Coordinators, to ensure that export compliance awareness training has taken place prior to commencing work. Training must be refreshed annually.

  3. Obtain an export control evaluation. Contact the OGC for assistance prior to export, if exporting anything other than Fundamental Research. See the Points of Contact listed at the bottom of these procedures.

C. Refuse to accept classified information from third parties.

D. Recognize that confidentiality commitments to, and confidential developments for, third parties can trigger export control obligations. Export-control obligations may be triggered when you accept access to or commit to produce confidential technical information. Unlike information that has been published or is in the public domain, confidential technical information may be subject to export restrictions. A decision to treat UCAR intellectual property as confidential and a commitment (whether orally or in writing) to third parties to treat information as confidential or export-controlled are inconsistent with any claim that such information is unrestricted and uncontrolled Fundamental Research. For this reason, be alert to such decisions and commitments. They signal the possibility that export controls apply to the information. Involve the OGC to ensure that you are adequately controlling such information and preventing access by Foreign Persons.

E. Recognize that services performed for a military purpose or for a military end user can trigger export control obligations. Projects may be ITAR-controlled if:

  1. The project is intended for a military purpose.
  2. The project is sponsored by a military entity and the sponsored work does not qualify as Fundamental Research ordinarily published and shared broadly within the scientific community.
  3. The project sponsor/contractor or subcontractor requests comprehensive Foreign Person access restrictions or publication restrictions on the results of the project.

Directors and any Principal Investigators with responsibility for any project involving the generation or acceptance of ITAR-controlled technical information must institute and document procedures designed to prevent access by unauthorized persons, including Foreign Persons.

F. Do not permit a Foreign Person access to export-controlled technical information without first obtaining an export license.

G. Refuse to engage in any suspicious transaction.

H. All international shipments of items and export controlled documents and technical data on media must be routed through Logistics. Technical data electronic transfers pursuant to existing TAAs, and documents that are not subject to export controls are the only exceptions.

I. Retain records. Records of export transactions and other export documentation must be maintained by UCAR Shipping, the OGC and the exporting employee (and other relevant personnel) for a minimum of five years from the date of shipment or expiration of the applicable license, whichever is longer.

J. Do not disclose export-controlled information to others without a compliance commitment. All agreements and contracts that may involve UCAR's disclosure or transfer of export-controlled items or technical information must include appropriate clauses, terms, or conditions to assure the third party's commitment to compliance with all applicable export control laws and regulations.

K. Do not do business with the following countries or individuals from these countries without first consulting with the OGC:

Iran , Syria , Cuba , Sudan , North Korea

L. Do not assist or otherwise do business with any Foreign Person who appears on any of the following Lists of Prohibited End Users:

1.     https://www.bis.doc.gov/dpl/thedeniallist.asp

2.     http://www.access.gpo.gov/bis/ear/pdf/744spir.pdf

3.     http://www.pmddtc.state.gov/compliance/debar.html

4.     http://www.bis.doc.gov/enforcement/unverifiedlist/unverified_parties.html

5.     http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf

IV. Points of Contact

Those people within UCAR who, in the event you are unsure or have a question regarding an export, will assist you in reviewing proposed Exports, and will provide assistance with regard to compliance. Also, when Export licenses are required, these people will assist in filing for licenses with the Federal Government.

UCAR Export contacts can be found on the Export Compliance website.


Last updated on July 29, 2013 - 2:44pm.
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